GOVIND VASHIST Vs. TEJ PAL

JUDGEMENT

(1.) This civil revision petition under Section 115 of the Code of Civil Procedure is directed against the order dated 20.5.2005 passed in a first civil appeal, by Additional District Judge, Delhi. The said first appeal was against order dated 29.1.2004 passed by the Civil Judge, Delhi, dismissing an application moved by the defendant (respondent herein) under Order XXXVII Rule 4 CPC, for setting aside a decree dated 4.7.2003.

(2.) I have heard Mr. K.N. Mishra, Advocate learned counsel for the petitioner and Mr.Alok Kumar,Advocate learned counsel for the respondent and have gone through the record. Briefly the facts are that the petitioner ' plaintiff (hereinafter referred to as plaintiff) filed a suit for recovery of Rs.1,54,450/- under Order XXXVII of the CPC, on the ground that plaintiff was the owner and landlord of a shop situated at Hari Nagar, New Delhi. The defendant, his brother and mother were said to be the joint tenants under the plaintiff. The rate of rent was earlier Rs.170/- per month, it was increased to Rs.187/- per month under the provisions of the Delhi Rent Control Act. It is pleaded that the tenancy was terminated. Later on a compromise/an agreement was entered into on 28.4.2003. As per the said compromise/agreement the plaintiff agreed to pay a sum of Rs.1,50,000/-, which was demanded by the defendant, in lieu of vacating the premises. It is stated that the premises were to be vacated on 7.5.2003. It is pleaded that the defendant had demanded the said amount for the daughter of his brother, who was a co-tenant. In view of the said assurance Rs.1,50,000/- was paid to the defendant and he executed a receipt. He also signed a promissory note dated 28.4.2003 and assured that in case he failed to vacate the premises before 7.5.2003, the plaintiff was free to recover the said amount with interest, through the court of law.

(3.) It is alleged that a fraud was played on the plaintiff and despite the clear terms and conditions of the agreement dated 28.4.2003, the defendant neither vacated the shop nor refunded the money along with interest despite sending a notice of demand. On these pleadings the suit for recovery of Rs.1,54,450/- was filed under Order XXXVII CPC. Vide order dated 4.7.2003 the learned Civil Judge decreed the suit of the plaintiff with cost and interest, on the ground that the defendant was served with the summons of judgment on 11.6.2003, but he did not apply for leave to defend within the prescribed period of 10 days, so the plaintiff was entitled to a decree for the suit amount on the basis of the above referred compromise/agreement and the consequential promissory note.